'Conservative' Supreme Court? Are you joking?

Ben Shapiro

6/30/2004 12:00:00 AM - Ben Shapiro

What ever happened to the "conservative" Supreme Court? The "lackeys" who "handed" George W. Bush the presidency? Apparently, they aren't so conservative, even though the liberal media continues to complain that the court shills for the Republican Party.

In the last few years, the Supreme Court has written sodomy into the Constitution of the United States; affirmed that affirmative action was constitutional, citing a broader need for "diversity"; refused to rule on whether "under God" in the Pledge of Allegiance was constitutional; and ruled that campaign-finance reform laws restricting free speech do not actually restrict free speech.

The latest spate of rulings from those right-wing zealots handed terror suspects, homegrown and foreign, the right to challenge their detention in an American courtroom. Since Zacarias Moussaoui's trial went so swimmingly, the justices in their infinite wisdom have decided that Osama bin Laden's buddies deserve their day in court. About the only question left is whether foreign terrorists should get in-state tuition at California public colleges.

In other news, that "conservative" court has decided that certain attempts to limit access to Internet pornography violate the First Amendment. Yes, that's right, Virginia! Getting together with your friends, incorporating and buying a political ad in the weeks leading up to an election is illegal in the United States -- and that ban is constitutional. But asking Web site operators to use credit cards, personal ID numbers or adult access codes to bar minors from entering porn sites is unconstitutional. So that's what the founders were thinking: Anti-Kerry ads must be stopped, but for God's sake, please protect "Lord of the G-Strings"!

The court has precisely three conservatives: Justices William Rehnquist, Antonin Scalia and Clarence Thomas. Anthony Kennedy and Sandra Day O'Connor are wild cards. Justices John Paul Stevens, Stephen Breyer, David Souter and Ruth Bader Ginsburg are liberals. One so-called moderate, O'Connor, leans heavily liberal. As of 2003, O'Connor had voted with Ginsburg on 75 percent of the cases on which both had sat. Objectively, the court isn't under the direction of Republican National Committee Chairman Ed Gillespie.

And yet, somehow, the reality that the Supreme Court is largely liberal doesn't register on the liberal radar, even when the Supreme Court is toeing the leftist line. Stephen Hess, a presidential scholar at the leftist Brookings Institution, described the Supreme Court terror decision this way: "a conservative Supreme Court found that a president wasn't sensitive enough to very basic constitutional rights and that must be hurtful over at the White House."

The New York Times editorial board described the Supreme Court as "conservative" -- in a June 27, 2003, editorial praising the court for writing sodomy into the Constitution. Linda Greenhouse, a New York Times reporter, echoed that sentiment at the time, writing, "A conservative Supreme Court has now identified the gay rights cause as a basic civil rights issue."

Why can't liberals simply accept that they've won with regard to the Supreme Court? Because if they do, they'll also have to accept that the results of the 2000 election were legitimate. It's easy enough to slander President Bush as a "president-select" when you apply the "conservative" label to the body that decided Bush vs. Gore, as vitriolic filmmakers Michael Moore and Harry Thomason do. But if the court is liberal, then Al Gore's defeat cannot be attributed to Republican conspiracies. If liberals acknowledge that the court is closer to Gore than to Bush ideologically, it's difficult to claim that the justices decided to throw the presidency to Bush.

If liberals admit that the court is liberal, they will also have to accept that there is no broad consensus on liberal agenda items. Because the supposedly "conservative" Rehnquist court is legitimizing liberal cause after liberal cause, leftists can currently claim that the American populace is forcing the "right-wing" court into capitulation. But if the court is actually liberal, then liberals will have to concede that judicial activism, not popular support for liberal causes, is behind the justices' decisions.

The saddest part of this judicial tragedy: Seven of these justices, including O'Connor, Stevens and Souter, were appointed by Republicans. While legitimate conservative Robert Bork promotes his books, Justice Kennedy decides cases.

Chances are good that at least one justice will step down during the next term. There's no guarantee that President Bush would appoint a hard-line conservative to the court, but the chances are certainly better with Bush than with Kerry. Republicans must strengthen their control of the Senate in order to ensure that a real conservative reaches the court.

Conservatives would do well to remember what liberals ignore: The court is liberal, not conservative. And unless Republicans strengthen their hold on power, it's going to stay that way.